Critical Race Theory January 10, 2014.docx

Critical Race Theory
(Canadian)
Liberal Legalism
• method of analysis that emphasized the rule of law, formalism, neutrality, abstraction and
individual rights
o response to another more traditional form of theorizing about legality and law
• allowed theorists to analyze concepts such as liberty, poverty, and rights with an
emphasis on dispassionate discourse
o
notion that rights apply to everyone the same way
o jurisprudence dictate policy
• Critical Legal Studies (CLS) emerged in the 1970s in the US - as a response and critique
to liberal legalism
o focused on how rights don't apply the same way to everyone
o race and position affect how the law is applied to individuals
• ex. disconnect between aboriginal population in total and aboriginal
population in provincial jails
The Rule of Law and CLS Critique
• rule of law - law applies without distinction in their application to particular groups
• CL theorists insist that this allows the powerful to oppress the powerless and maintain
existing political, social and economic advantages
• CLT see legal analysis as bound up with political and moral choices in a pluralistic
society
Formalism, Neutrality, Abstraction and the CLS Critique
• formalism (legal analysis) - from a liberal point of view is based on the premise that
legal rules can be applied in a logical manner
• CLT - argue that the law contains too many contradictions to be able to "produce"
determinant results and all the law is political
o dominant groups control the concept of "good"
o most judges emerge from the dominant group in society and bring their own
cultural/political biases
Individual Rights and the CLS Critique
• legal liberalism - places great emphasis on individual rights
o we have a very fair and expansive constitution
•
CLT - criticize the notion that the function of law is to facilitate a "neutral" outcome
• doctrine of rights analysis